In a claim popularly dubbed the ‘gay cake’ case, which has attracted international attention, District Judge Brownlie of the Northern Ireland County Court held yesterday that it was unlawful direct discrimination on grounds of sexual orientation for a bakery owned by two Christians to refuse to bake a cake which had printed on it a picture of ‘Bert and Ernie’ and the caption ‘Support Gay Marriage’ .
The parties approached the claim from very different standpoints. The Plaintiff, Mr Lee, argued that Mr and Mrs McArthur refused to bake the cake because he was gay. The Defendants argued that they did not know what Mr Lee’s sexual orientation was and it would have made no difference if they had. They would have happily served him a cake of any kind. Rather, they objected to the message on the cake because they felt they would be promoting or supporting a cause which they disagreed with, going against their consciences. They would have refused to bake the same cake for a customer of any sexual orientation.
Despite the Defendants’ clear statements to the contrary, Judge Brownlie held that they refused to bake the cake because the Plaintiff was gay. She reasoned that because it was obvious Mr Lee supported gay marriage, this meant the McArthurs “must either consciously or unconsciously have had the knowledge or perception that the Plaintiff was gay and/or associated with others who are gay.“
Judge Brownlie did not accept the Defendants’ explanation of their own conscientious objection. She held that:
I do not accept the Defendants’ submissions that what the Plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their deeply held religious beliefs. Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. There appears to have been no consideration given to any other measures such as the non – Christian decorator icing the cake or, alternatively, sub-contracting this order.
Whilst the Defendants had argued that the comparator should be a heterosexual or bisexual person who ordered the same cake, the judge decided that the correct comparator was actually a heterosexual person placing an order for a cake with the message ‘Support Marriage’ or ‘Support Heterosexual Marriage’.
She therefore held that the Defendants directly discriminated against the Plaintiff on grounds of his sexual orientation, contrary to regulation 5(1) of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.
Judge Brownlie went on to also find that the Defendants also acted in breach of the Fair Employment and Treatment (Northern Ireland) Order 1998, which prevents discrimination on grounds of religious belief or political opinion.
Articles 9 and 10 ECHR
The Defendants argued that the relevant provisions of the 2006 Regulations and 1998 Order should be read down so as to take account of their rights to freedom of conscience and freedom of expression in the European Convention. In particular, they suggested that a principle of ‘reasonable accommodation‘ should be applied so as to allow them an exemption from the law which would otherwise apply (an idea we have commented on in this blog before). However, Judge Brownlie found that the Regulations and Order already struck a balance between the rights of freedom of religion/expression and the right not to be discriminated against, without providing an exemption from equality law for businesses such as Ashers bakery, and she was not willing to alter that balance.
It seems Ashers Bakery were inevitably going to lose this case, on the basis that they directly discriminated on grounds of political opinion. This form of anti-discrimination law is unique to Northern Ireland and designed to deal with the particular problem of someone being treated unfavourably because of their Unionist or Nationalist views. However, the Order is drafted widely enough that it included Mr Lee’s campaigning for same-sex marriage, so the decision that the refusal to bake the cake was discrimination on grounds of political opinion must be correct. This does have the strange effect that, whilst the Northern Ireland Assembly have repeatedly refused to legalise same-sex marriage, it is nevertheless illegal to refuse to bake a cake in support of it!
In contrast, the judge’s findings in relation to discrimination on grounds of sexual orientation do not make much sense. One key misstep appears to be that she conflates support for same-sex marriage with a homosexual orientation, when they are clearly different things. Many people who are not gay (including the Prime Minister) support same-sex marriage. Some people who are gay (including Rupert Everett and Dolce and Gabbana) oppose same-sex marriage.
It is very odd that the judge felt able to tell the Defendants that they were not being asked to promote or support same-sex marriage, without properly explaining why and despite their deeply held view that they were. This completely fails to understand the nature of conscience, which is unique to each individual. Many people may have been happy with baking the cake, even if they personally opposed gay marriage, but the McArthurs weren’t. Unless the judge doubted their sincerity (which she didn’t), there is no reason for her to have completely dismissed their conscientious objection.
As it stands, this judgment leaves little or no room for freedom of conscience in business. The analysis used by the judge would mean a Muslim baker would have to bake a cake with a cartoon of the prophet Mohammed on it and the slogan ‘Je Suis Charlie’. An atheist printer would have to print leaflets proclaiming ‘the fool says in his heart “There is no God”’. A gay graphic designer would have to accept a contract to design a flyer saying ‘why sodomy is a sin’. None of those situations seem right.
Couldn’t the courts simply ask the following question: would the service or product which you are being asked to provide involve promoting, supporting or participating in a cause you do not agree with? If yes, you should be able to refuse on grounds of conscience. If no, you should provide the product or service, regardless of who the customer is.
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